Allahabad High Court
Amir And 3 Others vs State Of U.P. And Another on 15 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:113297
Court No. - 79
Case :- APPLICATION U/S 528 BNSS No. - 22026 of 2025
Applicant :- Amir And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sundeep Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Prashant Kumar,J.
1. Heard Sri Sundeep Shukla, learned counsel for the applicants, Sri N.K. Upadhyay, learned A.G.A. for the State-O.P. no.1 and perused the record.
2. The present application under Section 528 B.N.S.S. has been filed by the applicants praying for quashing impugned order dated 18.03.2025 passed by Sessions Judge, Muzaffar Nagar in Sessions Trial No.319 of 2025 (State vs. Amit and others) rejecting discharge application and further to quash impugned order dated 18.03.2025 by which charges were framed against the applicants arising out of Case Crime No.456 of 2024 under sections 191(2), 191(3), 333, 115(2), 125, 103(1) read with Section 190 B.N.S. 2023, P.S.Budhana, District-Muzaffar Nagar and further to quash entire proceedings of Sessions Trial No.319 of 2025 pending in the Court of Sessions Judge, Muzaffar Nagar or to stay the effect and operation of order dated 18.03.2025 during pendency of the application.
3. In the instant matter, an FIR was lodged by O.P. no.2 against five accused including present applicants on 02.11.2024 wherein it has been alleged that the accused persons armed with lathi, danda, balkati etc, forcibly entered house of O.P. no.2 and assaulted informant as well as his family members. It is further alleged that the father of the informant sustained grievous injuries and he has referred to District Hospital. After completion of investigation, on 17.01.2025, chargesheet has been submitted against the applicants under sections 191(2), 191(3), 333, 115(2), 125, 103(1) B.N.S. and after issuance of summons, the trial has commenced. At that point of time, applicants have moved an application for framing charge under section 105 B.N.S. (i.e. Section 304 IPC) in place of section 103(1) B.N.S. (i.e. Section 302 IPC). This application has been rejected by the trial court vide order dated 18.03.2025, which has been assailed by means of instant application.
4. Learned counsel for the applicants submitted that there was some dispute between children and maarpit took place but O.P. no.2 has lodged the FIR with false and concocted story. He submitted that members of both the sides have sustained injuries in the quarrel. He further submitted that the deceased sustained injuries due to stone pelting and succumbed to his injuries and the applicants had not intention to kill anyone. He further submitted that when FIR of the applicants could not be lodged they have filed an application under section 173(4) of B.N.S.S., which was treated as complaint case vide order dated 23.01.2025 and the trial of the case is going on. He further contended that even if the prosecution case is taken to be true, no offence under section 103 (1) B.N.S. is made out against the applicants. He next submitted that as per Section 304 IPC (now 105 B.N.S.) culpable homicide is not a murder. To buttress his argument, he has placed reliance on judgments passed by the Hon'ble Supreme Court in the matters of Pulicheria Nagaraju vs. State of Andhra Pradesh, AIR 2006 SC 3010 and Anbazhagan vs. State represented by Inspector of Police, 2023 SCC Online SC 857:2023 INSC 632 and also on a judgment passed by this Court in the matter of Manoj Kumar Yadav vs. State of U.P. (2022) 4 ACR 3102.
5. Per contra, learned A.G.A. vehemently opposed the application and contended that charges can be altered at any stage of trial. He further submitted that whether charges under section 105 or Section 103(1) of B.N.S. are attributable to the applicants can only be adjudicated upon after adducing evidence during course of the trial. It is further submitted that the Court below has rightly passed the impugned order and no interference is required by this Court.
6. Heard learned counsel for the parties and perused the record.
7. The averment made by learned counsel for the applicant, that the case does not fall under the category of Section 103(1) B.N.S. and it falls under the category of Section 105 B.N.S., can only be seen and adjudicated upon by the trial court after adducing evidences.
8. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that prima facie no offence is made out against the applicants. The cognizance order dated 16.07.2024 has been issued after perusing the material collected during investigation of the case. The arguments raised by learned counsel for the applicants are all disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court.
9. Hon'ble Supreme Court in the matters of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335, M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
10. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicants. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
11. However, it is open for the applicants to take all its defence in the trial.
12. Hence, the instant application cannot be entertained and is, accordingly, dismissed.
Order Date :- 15.7.2025
Manish Himwan
